UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-2152

JING JIANG, a/k/a Jyung Jyang,

Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Submitted:

April 3, 2012

Decided:

April 12, 2012

Before GREGORY, DUNCAN, and AGEE, Circuit Judges.

Petition denied in part; dismissed in part by unpublished per

curiam opinion.

Cora J. Chang, New York, New York, for Petitioner.

Tony West,
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel, David H. Wetmore, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Jing

Jiang,

native

and

citizen

of

the

Peoples

Republic of China, petitions for review of an order of the Board

of Immigration Appeals (Board) dismissing her appeal from the
immigration judges order denying her applications for asylum,
withholding from removal and withholding under the Convention
Against Torture (CAT).

We dismiss in part and deny in part

the petition for review.

The Immigration and Nationality Act (INA) authorizes
the Attorney General to confer asylum on any refugee.
1158(a)

(2006).

The

INA

defines

refugee

as

8 U.S.C.
a

person

unwilling or unable to return to her native country because of

persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.
Persecution

involves

the

8 U.S.C. 1101(a)(42)(A) (2006).

infliction

or

threat

of

death,

torture, or injury to ones person or freedom, on account of one

of the enumerated grounds. . . .
F.3d

171,

177

(4th

Cir.

2005)

Qiao Hua Li v. Gonzales, 405

(internal

quotation

marks

and

citations omitted).
An alien bear[s] the burden of proving eligibility
for asylum, Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006);

see

C.F.R.

1208.13(a)

(2011),

and

can

establish

refugee status based on past persecution in her native country

2

on account of a protected ground.

8 C.F.R. 1208.13(b)(1)

(2011).
Without

regard

establish

ground.

Ngarurih

2004).

The

to

well-founded
v.

past

fear

of

Ashcroft,

well-founded

persecution,
persecution

371

fear

F.3d

subjective and an objective component.

on

182,

standard

an

alien
a

can

protected

187

(4th

contains

Cir.

both

The objective element

requires a showing of specific, concrete facts that would lead a

reasonable

person

Gandziami-Mickhou
2006).

The

presentation

in
v.

like

Gonzales,

subjective
of

circumstances

candid,

445

to

fear

F.3d

351,

can

be

component
credible,

and

persecution.

353

met

(4th

Cir.

through

sincere

the

testimony

demonstrating a genuine fear of persecution . . . . [It] must

have

some

basis

in

the

reality

of

the

circumstances

and

be

validated with specific, concrete facts . . . and it cannot be

mere irrational apprehension.

Qiao Hua Li, 405 F.3d at 176

(internal quotation marks and citations omitted).

To establish eligibility for withholding of removal,
an alien must show a clear probability that, if she was removed
to her native country, her life or freedom would be threatened
on a protected ground.

8 U.S.C. 1231(b)(3)(A) (2006); see

Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004).

A clear

probability means that it is more likely than not that the

alien would be subject to persecution.
3

INS v. Stevic, 467 U.S.

407, 429-30 (1984).

Unlike asylum, withholding of removal is

mandatory for anyone who establishes that their life or freedom

would be threatened . . . because of [their] race, religion,
nationality,

membership

political opinion.
To

qualify

in

particular

social

group,

or

8 U.S.C. 1231(b)(3)(A) (2006).

for

protection

under

the

CAT,

an

alien

bears the burden of proof of showing it is more likely than not

that he or she would be tortured if removed to the proposed
country of removal.

8 C.F.R. 1208.16(c)(2) (2011).

To state

a prima facie case for relief under the CAT, an alien must show
that she will be subject to severe pain or suffering, whether
physical or mental, . . . by or at the instigation of or with
the consent or acquiescence of a public official or other person
acting

in

an

official

capacity.

C.F.R.

1208.18(a)(1)

(2011); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th
Cir. 2008).
A determination regarding eligibility for relief from
removal is affirmed if supported by substantial evidence on the
record considered as a whole.
478, 481 (1992).

INS v. Elias-Zacarias, 502 U.S.

Administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to decide

to the contrary.

8 U.S.C. 1252(b)(4)(B) (2006).

Legal issues

are reviewed de novo, affording appropriate deference to the

BIAs interpretation of the INA and any attendant regulations.
4

Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008).
This court will reverse the Board only if the evidence . . .
presented was so compelling that no reasonable factfinder could
fail

to

find

the

requisite

fear

of

persecution.

Elias-

Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325
n.14 (4th Cir. 2002).
an

alien

is

not

Furthermore, [t]he agency decision that

eligible

for

asylum

is

conclusive

unless

manifestly contrary to the law and an abuse of discretion.

Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting
8 U.S.C. 1252(b)(4)(D) (2006)).
On
established

appeal
past

to

the

persecution

Board,
based

Jiang
on

claimed

her

group, her kinship ties with her family.

that

particular

she

social

The Board noted this

claim was not raised before the immigration judge and that it
does not recognize claims raised for the first time on appeal.
Under

U.S.C.

1252(d)(1)

(2006),

this

court

may

review

final order of removal only if the alien has exhausted all

administrative remedies available to the alien as of right[.]
Any particular claim that is not properly exhausted is barred
from being reviewed by this court.

See Massis v. Mukasey, 549

F.3d 631, 638-39 (4th Cir. 2008) (Petitioner may not raise an
issue on appeal that he did not previously raise before the IJ
and

BIA.).

This

prohibition

claims is jurisdictional.

Id.
5

against

reviewing

unexhausted

Exhaustion

serves

the

purposes

of

(1)

preventing

premature interference with agency proceedings, (2) allowing the

agency to operate efficiently and to correct its own errors, (3)
affording

the

parties

and

the

(4)

compiling

agencys

expertise

and

judicial

review.

Weinbereger

courts

v.

the

an

benefits

adequate

Salfi,

422

of

the

record

for

749,

765

U.S.

(1975); see also Kurfees v. INS, 275 F.3d 332, 336 (4th Cir.
2001) (the exhaustion requirement serves the twin purposes of
protecting
judicial

administrative

agency

efficiency.).

Because

authority
Jiang

did

and
not

promoting

exhaust

all

available remedies, we conclude we are without jurisdiction to

consider

this

claim.

Accordingly,

we

dismiss

in

part

the

petition for review.

We have reviewed the immigration judges finding that
Jiang

did

not

show

that

she

has

well-founded

fear

of

persecution and conclude that it is supported by substantial

evidence.
supports

We
the

further

finding

that

conclude
Jiang

that
was

not

substantial
eligible

evidence

for

relief

under the CAT.

Accordingly, we dismiss that part of the petition for
review in which Jiang claims that she established a well-founded
fear

of

persecution

based

social group, her family.

petition for review.

on

her

membership

in

particular

We deny the remaining portion of the

We dispense with oral argument because the

6

facts

and

materials

legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in

the

aid

the

decisional process.
PETITION DENIED IN PART;
DISMISSED IN PART